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2023 DIGILAW 1637 (ALL)

Ram Naresh Verma v. State Of Uttar Pradesh

2023-07-11

MANJU RANI CHAUHAN

body2023
JUDGMENT : Ref:-Order on Impleadment Application 1. This impleadment application has been filed by one of the members of the Gaon Sabha. 2. Learned counsel for the petitioner submits that member of the Gaon Sabha cannot file a petition as he has no locus and has placed reliance upon the judgment of this Court in the case of Narendra Kumarvs. State of Uttar Pradesh and others reported in 2013(1)ADJ 228. 3. In view of the above, the impleadment application is rejected. Order on the writ petition 1. Heard Sri Rahul Sripat, learned Senior Advocate assisted by Sri Ishir Sripat, learned Advocate, learned counsel for the petitioner and Sri P.K. Giri, learned Additional Advocate General assisted by Sri Rishi Kumar, learned Additional Chief Standing Counsel for the State-respondents. 2. This writ petition has been filed by the petitioner with a prayer to quash the impugned order dated 23.03.2023 passed by District Magistrate, District-Chitrakoot, seizing the administrative and financial power of the petitioner as Gram Pradhan and appointing three members committee for discharging the duty of Gram Pradhan. 3. The facts, in brief, are that the petitioner was duly elected as Gram Pradhan in Village-Pahari Bujurg, District-Chitrakoot in the general panchayat election held in the year 2021. Subsequently, some irregularities were found in the maintenance of Gaushala by the concerned Block Development Officer, therefore, to enquire about the matter, the Block Development Officer entrusted the same to a three member committee and accordingly, the committee submitted a report/complaint by letter dated 29.11.2022 informing the Chief Development Officer, Chitrakoot that the Gram Pradhan and Gram Panchayat Adhikari are not taking interest in the work under the “Swachha Bharat Mission”. The aforesaid complaint dated 14.11.2022 as well as letter dated 29.11.2022 was submitted before the District Magistrate, Chitrakoot, who in turn, vide order dated 30.12.2022, after recording prima facie satisfaction regarding dereliction of duty as per Section 95 (1) (g) of the Uttar Pradesh Panchayat Raj Act, 1947[“The Act, 1947”] (hereinafter referred to as ''the Act, 1947''), issue notice calling upon the petitioner to submit his explanation alongwith relevant documents within 28 days. Pursuant to the aforesaid notice dated 30.12.2022, the petitioner submitted explanation through registered post dated 16.01.2023, which was received on 23.01.2023 in the office of District Magistrate, Chitrakoot. Pursuant to the aforesaid notice dated 30.12.2022, the petitioner submitted explanation through registered post dated 16.01.2023, which was received on 23.01.2023 in the office of District Magistrate, Chitrakoot. After considering the explanation as submitted by the petitioner, the District Magistrate, Chitrakoot, based on the complaint of the Block Development Officer, found that the petitioner was prima facie guilty of misusing his post and he in totality failed to fulfil the duty and responsibilities attached to his post and passed the order dated 23.03.2023 seizing his power to exercise financial and administrative functions under ''the Act, 1947''. Hence the present writ petition has been filed. 4. Learned counsel for the petitioner submits that as per the provisions of Section 95 (1)(g) of the Uttar Pradesh Panchayat Raj Act, 1947, which provides for the removal of Pradhan, the District Magistrate is empowered to pass an order of removal of an elected Pradhan and pending final enquiry, the financial and administrative functions are to be performed by a Committee consisting of three Members as indicated in the proviso of Section 95(1)(g) of “the Act, 1947”. The learned counsel for the petitioner has drawn the attention of this Court to Rule 3 of the Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997[“The Rule, 1997] (hereinafter referred as “the Rule”), which provides for a complaint to be made by a complainant duly supported by an affidavit of the complainant as well as the affidavit of any other person from whom the information is said to have derived. 5. Rule 4 of the said Rules provides for the manner in which the District Magistrate shall proceed after the receipt of the complaint referred to in Rule 3. The provision of Rule 4 is that on receiving a report referred to in Rule 3, the State Government or the District Magistrate shall order an enquiry to be conducted known as 'preliminary enquiry' with a view to finding, if there is prima-facie case for a proper enquiry in the matter. The said enquiry is to be conducted by Enquiry Officer. The term of Enquiry Officer is defined in Section (2) (c) of the Rules which defines Enquiry Officers means Deputy Panchayat Raj Officer or any other District level officer, to be nominated by the District Magistrate. 6. The said enquiry is to be conducted by Enquiry Officer. The term of Enquiry Officer is defined in Section (2) (c) of the Rules which defines Enquiry Officers means Deputy Panchayat Raj Officer or any other District level officer, to be nominated by the District Magistrate. 6. It is relevant to quote here Rule 2 (c) of the Rule, 1997, which reads as under:- “Enquiry Officer' means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate.” 7. In view of the specific provisions of the Rules, counsel for the petitioner has argued that the Rules are mandatory and the Enquiry Officer who has conducted the enquiry and on whose enquiry the impugned order has been passed is not an officer, who is competent under the Rules and thus, the impugned order relying upon an enquiry which is without jurisdiction, is liable to be held bad in law. 8. Learned counsel for the petitioner further submits that in the present case, it is the Block Development Officer, who has constituted a committee to conduct preliminary enquiry, which is clear violation of the provisions of the aforesaid rule as the Block Development Officer cannot be taken as enquiry officer as defined Rules 2(c) of Rules 1997. 9. Learned counsel for the petitioner has drawn attention of the Court to the proviso of Section 95 (1)(G) of the Act, 1947, which provides that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government. 10. Explaining the aforesaid provision, learned counsel for the petitioner submits that as the alleged preliminary enquiry has not been conducted in the manner as provided in the Rules 1997, therefore, the impugned order cannot be sustained. However, ignoring the aforesaid, if the enquiry conducted by the committee constituted by the Block Development Officer is accepted, no prima facie satisfaction has been recorded by the District Magistrate, Chitrakoot regarding any financial irregularities done by the Gram Pradhan. However, ignoring the aforesaid, if the enquiry conducted by the committee constituted by the Block Development Officer is accepted, no prima facie satisfaction has been recorded by the District Magistrate, Chitrakoot regarding any financial irregularities done by the Gram Pradhan. Thus the impugned order cannot be sustained on the aforesaid ground also. 11. In support of his submissions, learned counsel for the petitioner has relied upon the judgment of this Court in the case of Mahmood Ansari vs. State of Uttar Pradesh and others, Writ-C No.30938 of 2018 decided on 21.12.2018. He lastly submits that prima facie, the allegations levelled against the petitioner do not invoke any clause of Section 95(1)(G) of the Act, 1947, thus the impugned order dated 23.03.2023 is liable to be set aside. 12. On the other hand, learned Standing Counsel submits that there is no illegality in the order impugned in view of Rule 3 (6) of the Rules 1997. It is relevant to quote here Rule 3 of the Rule, 1997, which reads as under:- "3. Procedure relating to complaints.- (1) Any person making a complaint against a Pradhan or Up-Pradhan may send his complaint to the State Government or any officer empowered in this behalf by the State Government. (2) Every complaint referred to in sub-rule (1) shall be accompanied by the complainant's own affidavits in support thereof and also affidavits of all persons from whom he claims to have received information of facts relating to the accusation, verified before a notary, together with all documents in his possession or power pertaining to the accusation." (3) Every complaint and affidavit under this rule as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings and affidavits, respectively. (4) Not less than three copies of complaint as well as each of its annexures shall be submitted by the complainant. (5) A complaint which does not comply with any of the foregoing provisions of this rules shall not be entertained. (6) It shall not be necessary to follow the procedure laid down in the foregoing provisions of this rule, if a complaint against a Pradhan or Up-Pradhan is made by a public servant." 13. (5) A complaint which does not comply with any of the foregoing provisions of this rules shall not be entertained. (6) It shall not be necessary to follow the procedure laid down in the foregoing provisions of this rule, if a complaint against a Pradhan or Up-Pradhan is made by a public servant." 13. Learned Standing Counsel, therefore, submits that in the present case where the complaint is made by the Block Development Officer, who in order to verify as to whether the petitioner has failed to perform the duty imposed by the Act, constituted a three member committee, wherein it was found that in the concerned Gram Panchayat Bujurg 395 progeny (Govansh) were preserved in the Mandi Samiti Campus, Pahari, but in the morning of 14.11.2022 at about 10:00 a.m., they were made to run away, hence the petitioner has not co-operated in functioning of the aforesaid Gaushala. Thus the aforesaid report being placed by the Block Development Officer before the Chief Development Officer as well as the District Magistrate, Chitrakoot, can be taken as a complaint by the public servant. Hence as per the rule 3 (6) of the Rules 1997, the same can be treated as a complaint. 14. As regards the argument placed by the learned counsel for the petitioner regarding the fact that the financial and administrative powers of the Pradhan cannot be seized unless there is financial irregularities, learned Standing Counsel submits that in the proviso of Section 95(1)(g) of the Act, 1947 itself the word “other irregularities” included, the aforesaid situation wherein the petitioner has not performed his duties and has abused his position. Therefore, the aforesaid provision is attracted in the facts of the present case. He has drawn attention of the Court to Rule 95 (1)(g) of the Act, 1947, which is as follow:- “95. Inspection – (1) The State Government may – (g) remove a Pradhan, Up-Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Samiti, or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he – i- absents himself without sufficient cause for more than three consecutive meetings or sittings. ii- refuses to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude. ii- refuses to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude. iii- has abused his position as such or has persistently failed to perform the duties imposed by this Act or rules made thereunder or his continuance as such is not desirable in public interest, or [iii-a has taken the benefit of reservation under sub-section (2) of Section 11-A or sub-section (5) or Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of Scheduled Castes, the Scheduled Tribes or the backward classes, as the case may be.] iv- being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics, or v- suffers from any of the disqualifications mentioned in Clauses (a) to (m) of Section 5-A; Provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government." 15. He, therefore, submits that in the present situation, the petitioner has not performed his duty of looking into the proper functioning of the Gaushala from where the cattles were made to run, thus there is no illegality in the order impugned passed by the respondent no.2. 16. He, therefore, submits that in the present situation, the petitioner has not performed his duty of looking into the proper functioning of the Gaushala from where the cattles were made to run, thus there is no illegality in the order impugned passed by the respondent no.2. 16. He has also drawn attention of the Court to para 3 of the Circular Dated 28.02.2014 issued by the State Government to all the District Magistrates, which is as under:- ^^3- izkjfEHkd tkap ds vk/kkj ij ;k vU;Fkk tgkW jkT; ljdkj@ftyk eftLVªsV dh ;g jk; gks fd /kkjk 95 dh mi/kkjk ¼1½ ds [kaM¼N½ ds izfrcU/kkRed [kaM ds v/khu fdlh iz/kku ;k mi iz/kku ds fo:) tkW dh tkuh pkfg, vFkkZr dh x;h fdlh izkjfEHkd tkap esa iz/kku izFke n`"V;k foŸkh; vkSj vU; vfu;ferrk dk nks”kh ik;k tk,] ogka ,slk iz/kku foŸkh; vkSj iz'kklfud 'kfDr;ksa dk iz;ksx vkSj d`R;ks dk laiknu ugh djsxk vkSj tc rd dh og vafre tkap es vkjksiks ls eqDr u gks tk;s] ,slh 'kfDr;ks dk iz;ksx vkSj d`R;ks dk laiknu jkT; ljdkj@ftyk eftLVªsV }kjk bl fufeŸk fu;qDr xzke iapk;r ds rhu lnL;ks dh ,d lfefr }kjk fd;k tk;sxk^^ 17. As per the aforesaid circular, the financial and administrative powers of the Pradhan can be seized, when State Government/District Magistrate records prima facie satisfaction and finds, on the basis of preliminary enquiry or otherwise, that the Pradhan has committed financial and other irregularities. Therefore, no illegality, infirmity or perversity is found in the impugned order, hence no interference is required by this Court. 18. To the aforesaid submission, learned counsel for the petitioner submits that the Circular dated 28.02.2014 as relied upon the learned Standing Counsel does not have statutory force as the same is simply guidelines/directions to be followed while conducting an enquiry against the Pradhan on the complaint made in accordance with the provision of Rule 3 of the Rules 1997. 19. I have heard learned counsel for the petitioner and learned Standing Counsel and perused the records. 20. Perusal of the records goes to show that the Block Development Officer has constituted a committee to enquire into the conduct of the petitioner and the same has been placed before the District Magistrate, Chitrakoot relying upon which the impugned order has been passed. 21. 20. Perusal of the records goes to show that the Block Development Officer has constituted a committee to enquire into the conduct of the petitioner and the same has been placed before the District Magistrate, Chitrakoot relying upon which the impugned order has been passed. 21. This Court feels that though the aforesaid complaint may be treated as proper complaint as per Rule 3 of the Rules, 1997 by a public servant, the District Magistrate, Chitrakoot, on the receipt of the complaint or report referred to in Rule 3, or otherwise, order the Enquiry Officer to conduct a preliminary enquiry with a view to find out if there is a prima facie case for a formal enquiry in the matter. Under Rule 5 of the Rules, 1997, where the District Magistrate is of the opinion, on the basis of the report referred to in sub-rule (2) of Rule 4 or otherwise, that an enquiry should be held against a Pradhan or Up-Pradhan or Member, he shall forthwith constitute a Three Member Committee and by an order ask an Enquiry Officer, other than the Enquiry Officer nominated earlier, to hold the enquiry. The enquiry officer for conducting the preliminary enquiry should be the District Panchayat Raj Officer or any other 'district level officer' to be nominated by the District Magistrate. 22. It is, therefore, to be examined whether the aforesaid provisions of the Rules had been followed by the District Magistrate while passing the order under Section 95(1)(g) of the Act. 23. The records indicate that the Block Development Officer on receiving some complaint, in order to verify the same constituted a three member committee, and the report of the committee was placed before the District Magistrate, on the basis of which, impugned order has been passed. 24. The preliminary enquiry as is required to be conducted by an Enquiry Officer contemplated under Rule 2(c) of the Rules, 1997 namely either the District Panchayat Raj Officer or any other district level officer to be nominated by the District Magistrate, has not been conducted in the present case. The District Magistrate could found his prima facie satisfaction for holding a final enquiry only on the basis of the report submitted by the Enquiry Officer defined under Rule 2(c) of the Rules, 1997. 25. The District Magistrate could found his prima facie satisfaction for holding a final enquiry only on the basis of the report submitted by the Enquiry Officer defined under Rule 2(c) of the Rules, 1997. 25. As regards the Circular dated 28.02.2014 as mentioned in the order impugned, the Court is of the opinion that the same cannot prevail over the provisions of the relevant Act and Rules as the same is having no statutory force and being simply a direction issued by the Chief Secretary/ State Government to be followed by all the District Magistrates while conducting enquiry against the Pradhan. 26. This Court finds that the report dated 14.11.2022 placed by the Block Development Officer before the District Magistrate, Chitrakoot can be treated as proper complaint as per Sub-rule (6) of Rule 3, hence the District Magistrate, Chitrakoot ought to have appointed an Enquiry Officer under Rule 2(c) of the Rule 1997 to conduct a preliminary enquiry. 27. On perusal of the Act and the Rules, the Court is of the clear view that an elected representative can be removed only and strictly in accordance with law and in this regard the law which provides for removal of an elected representative has to be strictly construed. The enquiry report dated 14.11.2022 can only be treated as a complaint made by the Block Development Officer, i.e. public servant. However, the error in the impugned order is apparent to the extent that the Inquiry Committee constituted is not in terms of rule 2-C of the Rules, 1997 and the order impugned is based upon the said enquiry report dated 14.11.2022, therefore, the order impugned is held to be bad in law. 28. In view of the above, the impugned order dated 23.03.2023 passed by the respondent no.2 seizing financial and administrative powers of the petitioner is hereby quashed. However, the District Magistrate/Collector, i.e. respondent no.2 is directed to proceed afresh with the inquiry by constituting an Inquiry Committee or appoint an Inquiry Officer in terms of rule 2-C of the Rules, 1997 within 15 days on receipt of a certified copy of this order, who shall, thereafter, conduct an enquiry in the matter with the assistance of other Revenue officers/authorities as the District Magistrate may provide and submit the inquiry report to the District Magistrate within a period of next four weeks. Based on such inquiry report, after following proper procedure, a decision shall be taken by the District Magistrate under the proviso to Section 95(1)(g) of the Act, 1947 read with the Rules, 1997 as to whether the financial and administrative powers of the petitioner are required to be seized or not? Consequences shall follow accordingly, in accordance with law. 29. With the aforesaid observations and directions, the writ petition is allowed. 30. Office is directed to give a copy of this order to learned Chief Standing Counsel, who shall communicate this order forthwith to the respondent no.2, i.e. District Magistrate, Chitrakoot for compliance.